Perez v. U.S. Dept. of Agriculture Forest Service

• Court: District Court, E.D. California
• Decided: October 17, 2024
• Docket: 2:23-cv-00715
• Status: Unknown

Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 Raul R. Perez, et al., No. 2:23-CV-00715-KJM-AC 10 Plaintiffs, ORDER 1] Vv. United States of America, IS Defendant. 14 15 Plaintiffs Raul and Brittany Perez and their minor children bring this wrongful death 16 | action against the United States! under the Federal Tort Claims Act (FTCA). The government 17 | moves for summary judgment based on the statute of limitations. Plaintiffs oppose and the 18 | government has replied. For the foregoing reasons, the court grants the government’s motion for 19 | summary judgment. 20 | IL. BACKGROUND 21 On June 3, 2020, plaintiffs were camping at the Schoolhouse Campground at Bullards Bar 22 | Reservoir when a tree fell directly on their tent. Perez Letter, Roger A. Dreyer (RAD) Decl. Ex. 23 | 1, ECF No. 20-3; Babich Letter, RAD Decl. Ex. 2, ECF No. 20-4. A.P., plaintiffs’ son and 24 | brother, was killed. Perez Letter. Shortly thereafter, plaintiff Raul Perez wrote a letter requesting ' Plaintiffs originally named the United States Department of Agriculture: Forest Service and Does 1-50, inclusive as defendants. However, the United States is the only proper defendant in an action brought under the Federal Tort Claims Act. See Kennedy v. U.S. Postal Serv., 145 F.3d 1077, 1078 (9th Cir. 1998). The government requests the court adjust the docket to reflect this fact. See Mem. at 1 n.1, ECF No. 13-1. Plaintiffs do not object. See generally Opp’n, ECF No. 20. Accordingly, the court grants the government’s request.

1 the police report and other documentation regarding the incident. Id. This began plaintiffs’ 2 months-long investigation. Plaintiffs’ counsel filed Freedom of Information Act requests, see 3 First FOIA Req., RAD Decl. Ex. 3, ECF No. 20-5; Second FOIA Req., RAD Decl. Ex. 5, ECF 4 No. 20-7, followed up when the government initially did not timely respond, see FOIA emails, 5 Natalie M. Dreyer (NMD) Decl. Ex. 1, ECF No. 20-17, and ensured their clients were reimbursed 6 a deposit they had made when the government did not produce the information requested within 7 the statutory timeframe for responding to the requests, see id. The investigation culminated in 8 plaintiffs sending an administrative tort claim to the U.S. Department of Agriculture (USDA): 9 Forest Service dated November 29, 2021. First Claim, RAD Decl. Ex. 6, ECF. No. 20-8. 10 Plaintiffs’ counsel shared additional information with the USDA upon request, see USDA Letter, 11 RAD Decl. Ex. 8, ECF No. 20-10; Claims Processor Emails, NMD Decl. Ex. 2, ECF No. 20-18, 12 and ultimately submitted an amended claim dated April 18, 2022, see Am. Claim, RAD Decl. 13 Ex. 9, ECF No. 20-11. Plaintiffs continued to communicate with a USDA claims processor. See 14 Claims Processor Emails; Claims Processor Emails Cont., NMD Decl. Ex. 3, ECF No. 20-19. On 15 May 27, 2022, plaintiffs received notice their claim had been transmitted to the Office of General 16 Counsel (OGC) for determination. See Notice Letter, NMD Decl. Ex. 4, ECF No. 20-20. That 17 same day plaintiffs elected to file a lawsuit, because they were concerned time was running out to 18 file their claim in federal court. See RAD Decl. ¶ 13, ECF No. 20-2. Accordingly, plaintiffs filed 19 a wrongful death action based on the FTCA––Perez I. See Compl., Case No. 22-cv-00941 20 (Perez I), ECF No. 1.2 As explained below, the court granted the government’s motion to dismiss 21 Perez I, and the case was closed. See Prior Order (July 20, 2023), Case No. 22-cv-00941 (Perez 22 I), ECF No. 27. Plaintiffs have appealed the dismissal of this first case. See Appeal Notice, Case 23 No. 22-cv-00941 (Perez I), ECF No. 29. As of the date of this order, the appeal remains pending. 24 While the complaint in Perez I was pending before this court, the USDA sent two letters 25 to plaintiffs’ counsel. The first letter was dated June 16, 2022 (June letter), see June Letter, 2 The government requests the court take judicial notice of plaintiffs’ complaint and the government’s answer in Perez I. See Reply at 10 n.7, ECF No. 21. Because these documents are matters of public record not reasonably subject to dispute, the court takes judicial notice of the filings in Perez I. Fed. R. Evid. 201(b). 1 Christopher S. Elmore Decl. Ex. 1, ECF No. 13-73, and the second letter was dated August 25, 2 2022 (August letter), see August Letter, Elmore Decl. Ex. 2, ECF No. 13-8. 4 The government 3 argues these letters constituted denial letters. See Mem. at 3,5 ECF No. 13-1. Plaintiffs contest 4 this characterization. See Opp’n at 13–15, ECF No. 20. On February 9, 2023, the government’s 5 counsel sent an email to plaintiffs’ counsel noting Perez I had been filed before six months had 6 passed following plaintiffs’ filing of their claim with the USDA. Government Email, Phillip A. 7 Scarborough Decl. Ex. 1, ECF No. 13-10. Plaintiffs did not respond. Id.; Scarborough Decl. ¶ 3, 8 ECF No. 13-9. On April 14, 2023, the government filed a motion to dismiss Perez I. MTD, Case 9 No. 22-cv-00941 (Perez I), ECF No. 18. The government argued the filing was premature and 10 consequently deprived the court of jurisdiction. See id. at 1. This court concluded the 11 government’s position was correct under the applicable law, and found plaintiffs did not wait to 12 file their complaint until they had received a denial notice or for six months to pass after they 13 submitted their claim, as required under the FTCA. See Prior Order (July 19, 2023), Case 14 No. 22-cv-00941, ECF No. 27 (finding plaintiffs did not comply with exhaustion requirements 15 imposed by 28 U.S.C. § 2675(a)). 16 Shortly after the government filed the motion to dismiss in Perez I, plaintiffs filed this 17 action on April 17, 2023. See Compl., ECF No. 1. The government answered the complaint, see 18 Answer, ECF No. 11, and then filed its motion for summary judgment on the same day, arguing 19 plaintiffs filed Perez II beyond the applicable statute of limitations, see MSJ, ECF No. 13. The 20 motion has been fully briefed, see generally Opp’n; Reply, and the court heard oral arguments on 21 December 8, 2023. See Hr’g Mins., ECF No. 25. Natalie M. Dreyer and Roger A. Dreyer 22 appeared for plaintiffs Raul Perez and Brittany Perez. Id. James Wagstaffe appeared for 23 ///// 3 The same letter is included in Exhibit 11 to the declaration of Roger A. Dreyer, filed at ECF No. 20-13. 4 The same letter is included in Exhibit 12 to the declaration of Roger A. Dreyer, filed at ECF No. 20-14. 5 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system. 1 plaintiffs N.R.P., C.A.P. and B.M.P. Id. Philip Scarborough appeared for the government. Id. 2 The court took the matter under submission. Id. 3 II. Evidentiary Objections 4 As a preliminary matter, because a trial court can only consider admissible evidence in 5 ruling on a motion for summary judgment, the court first addresses the government’s objections 6 to plaintiffs’ evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002); 7 Fed. R. Civ. P. 56(e); see generally Government’s Obj., ECF No. 21-4. After careful review, the 8 court notes many of the objections fall into the following two categories: (1) legal conclusion or 9 legal argument; and (2) mischaracterization of the record. Generally, the admissibility of 10 evidence at summary judgment is governed by different rules and different motivations than at 11 trial. At summary judgment, Rule 56 allows objections to evidence when “the material cited . . . 12 cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). A 13 court can only grant summary judgment when there is no genuine dispute of material fact. See 14 Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006). Statements in 15 declarations drawing improper legal conclusions or making legal arguments are not facts and the 16 court does not consider them on a motion for summary judgment. Objections on these grounds 17 thus are “duplicative of the summary judgment standard itself” and the court OVERRULES 18 them. See, e.g., Carden v. Chenega Sec. & Prot. Servs., LLC, No. 09-cv-01799, 2011 WL 19 1807384, at *3 (E.D. Cal. May 10, 2011) (finding similarly). Second, an objection that testimony 20 mischaracterizes the record either calls for a credibility determination unsuited for summary 21 judgment or would be better directed at the underlying evidence itself. See, e.g., Stonefire Grill, 22 Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1034 (C.D. Cal. 2013) (“[T]he Court will not 23 consider the parties’ objections aimed at the characterization of or purported misstatement of the 24 evidence[.]”). The government’s objections on these grounds also are OVERRULED. 25 Finally, the court does not rule on objections to evidence the court does not examine in 26 ruling on the motion. See Burch, 433 F. Supp. 2d at 1122 (proceeding with only necessary 27 rulings on evidentiary objections). The court DENIES AS MOOT the government’s other 28 ///// 1 objections. See, e.g., Government’s Obj. No. 1 (objecting to statements in Roger A. Dreyer’s 2 declaration for lack of foundation and lack of personal knowledge). 3 III. LEGAL STANDARD 4 Summary judgment is appropriate if “there is no genuine dispute as to any material fact 5 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is 6 “genuine” if “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. 7 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome 8 of the suit under the governing law.” Id. The parties must cite “particular parts of materials in 9 the record.” Fed. R. Civ. P. 56(c)(1). The court then views the record in the light most favorable 10 to the nonmoving party—the plaintiffs in this case—and draws reasonable inferences in that 11 party’s favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986); 12 Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). 13 IV. ANALYSIS 14 The government moves for summary judgment on the grounds this suit is untimely. See 15 Mem. at 1. In opposition, plaintiffs argue the operative complaint is timely and, in the alternative, 16 the government is equitably estopped from claiming untimeliness or equitable tolling applies. See 17 generally Opp’n. The court address the parties’ arguments in turn. 18 A. Timeliness 19 Plaintiffs’ argument for timeliness is predicated on the assertion the letters they received 20 do not constitute “legally recognized denial” letters under the FTCA. See Opp’n at 13. Under the 21 FTCA, a plaintiff must first submit an administrative tort claim. 28 U.S.C. § 2675(a). If 22 plaintiffs timely file an amendment to a pending claim, as plaintiffs did here, “claimant’s option 23 under 28 U.S.C § 2675(a) shall not accrue until six months after the filing of an amendment.” 24 28 C.F.R. § 14.2(c). After submitting a claim, plaintiffs may not file a lawsuit until they receive a 25 final denial of their claim or until six months has elapsed from the claim’s filing date. § 2675(a). 26 If plaintiffs do not receive a denial letter within six months after filing their claim, their claim is 27 “deemed denied” and plaintiff can initiate litigation “any time thereafter.” Id. However, the time 28 for commencing action against the United States is subject to certain limitations. 28 U.S.C. 1 § 1401(b). Relevant here, “a tort claim against the United States will be forever barred unless . . . 2 action is begun within six months after the date of mailing, by certified or registered mail, of 3 notice of final denial of the claim by the agency to which it was presented.” Id.; see e.g., Lehman 4 v. United States, 154 F.3d 1010 (9th Cir. 1998) (noting an agency can file a denial notice after six 5 months have passed since a claim was filed and subsequently “trigger” the six months limitation 6 period under 28 U.S.C. § 2401(b)). 7 Here, plaintiffs presented their amended claim on April 18, 2022, and were thus required 8 to wait six months—until October 18, 2022—or until the USDA denied their claim, before 9 bringing suit in district court. See Amended Claim; RAD Decl. ¶ 12, ECF No. 20-2 10 (acknowledging second claim “superseded the prior submission”––their original claim). 11 However, prior to receiving any communication from the USDA denying their claim and prior to 12 October 18, 2022, “[p]laintiffs’ counsel elected to file their [first] complaint in federal court 13 because in their minds, it was necessary . . . to preserve their clients’ rights to a trial.” RAD Decl. 14 ¶ 13. As plaintiffs’ counsel concede, this decision was based on a mistake of law. Opp’n at 10 15 (noting as one basis for the concession that “the state statute of limitations would not have barred 16 the suit.”). 17 After plaintiffs filed their complaint in Perez I, the USDA sent two letters to plaintiffs’ 18 counsel, one dated June 16, 2022, and the second dated August 25, 2022. June Letter; August 19 Letter. While the government claims each of these letters served as a “proper denial that 20 complied with the FTCA,” see Mem. at 5, plaintiffs disagree, see Opp’n at 13–15. Plaintiffs do 21 not dispute they received the letters, and the parties effectively agree the amended claim plaintiffs 22 filed on April 18, 2022, is the governing claim. See RAD Decl. ¶ 12; Reply at 3–4 n.1. 23 Therefore, the question before the court is whether the USDA’s August letter, which is the only 24 letter that refers to the amended claim, is a denial letter under the FTCA that triggered the six- 25 month statutory period for bringing suit. See August Letter(“[t]his is regarding the administrative 26 tort claim that your clients presented to the United States Department of Agriculture, United 27 States Forest Service, on April 18, 2022). 28 ///// 1 Plaintiffs present two arguments in support of their claim the August letter does not 2 constitute a denial.6 First, plaintiffs contend the letter is not a denial, because it does not 3 unequivocally deny the amended claim and it improperly refers to the filing of Perez I as the basis 4 for the denial. Opp’n at 13–14. In response, the government argues 28 U.S.C. § 2401(b) “neither 5 requires nor prohibits a statement of reasons for the denial,” and instead, an agency simply “must 6 provide notice of final denial.” See Reply at 4 (internal citation and quotation omitted). 7 Plaintiffs’ argument in this respect is unavailing. The August letter provides the correct 8 date the amended claim was filed, states the plaintiffs’ names in the subject line and addresses the 9 letter to plaintiffs’ attorneys. See August Letter. Significantly, it contains the words “your claim 10 is also hereby denied by the United States Department of Agriculture.” Id. This express 11 language is sufficient to constitute a notice of final denial as contemplated by both § 2675(a) and 12 § 2401(b). See 28 U.S.C §§ 2675(a), 2401(b); see also Lehman, 154 F.3d at 1012 (denying 13 plaintiffs’ claim after plaintiffs filed suit). Plaintiffs provide no authority for their argument the 14 letter does not constitute an effective denial because it incorrectly referred to the filing of Perez I 15 as the basis for the denial. See Opp’n at 14. Because neither § 2675(a) nor § 2401(b) requires 16 agencies to explain why administrative tort claims are denied in their denial letters, the court finds 17 the August letter sufficient as a denial. 18 Second, plaintiffs argue the August letter “did not emanate from the agency to whom the 19 claims were submitted” and plaintiffs’ counsel was “reasonably confused[.]” Opp’n at 11 n.3, 15. 20 Specifically, plaintiffs argue they presented their claim to the USDA, but received the August 21 letter from the OGC. Id. The government says this argument lacks merit because the letter came 22 from USDA’s OGC, see Reply at 3, and based on the record the court so concludes. 23 Specifically, the government declares the “USDA’s Office of the General Counsel is part 24 of the USDA.” Elmore Decl. ¶ 2, ECF No. 13-6. This is also clear from the August letter’s 25 letterhead. In the top left hand corner, next to the USDA seal, it states “United States Department 6 Plaintiffs refer to both the June and August letters in opposition. See Opp’n at 13–14. However, the court focuses on only the August letter because as discussed above, the August letter is the only letter that refers to the operative claim. 1 of Agriculture.” See August Letter. Next come the words “Office of the General Counsel” and 2 then one address, clearly showing the OGC is part of the USDA. Id. Additionally, plaintiffs’ 3 counsel had previously received a communication informing them that “[a]s an agency, the Forest 4 Service does not have authority to settle tort claims and it is required to refer them to the USDA 5 Office of the General Counsel (OGC) for determination.” See USDA Letter. Later, plaintiffs’ 6 counsel received a letter from the USDA claims processor stating the tort claim had been referred 7 and “[a]ny future communication regarding th[eir] claim w[ould] be from the Office of General 8 Counsel.” Notice Letter. Given this context and chronology, the court cannot find plaintiffs’ 9 counsel’s confusion reasonable. The requirement that the denial letter come from the same 10 agency that received the claim is met. See 28 U.S.C. § 2671 (defining “Federal agency” under the 11 FTCA); 28 U.S.C. § 2401(b). 12 Under 28 U.S.C. § 2401(b), which governs the time during which a party may commence 13 a tort claim against the United States, once a plaintiff receives a final denial letter from an agency 14 to which it presented its claim, plaintiff must bring an action within six months or have that claim 15 be forever barred. See Lehman, 154 F.3d at 1014. Therefore, because the letter sent on 16 August 25, 2022, was a denial letter from the USDA––the agency to which the amended claim 17 was presented––, the deadline for plaintiffs to file suit was February 25, 2023. The instant suit 18 was not filed until almost two months later, on April 17, 2023. See Compl. Plaintiffs’ complaint 19 is time barred. 20 In the alternative, plaintiffs argue the government should be “equitably estopped from 21 claiming untimeliness” and equitable tolling applies. See Opp’n at 16–17. The court examines 22 whether plaintiffs are entitled to equitable relief below. 23 B. Equitable Estoppel 24 The Ninth Circuit holds equitable estoppel applies under the FTCA when: (1) the party 25 to be estopped knows the facts; (2) the party to be estopped intends their conduct will be acted on 26 or must so act that the party invoking estoppel has a right to believe it so intended; (3) the party 27 invoking estoppel was ignorant of the true facts; and (4) the party invoking estoppel detrimentally 28 relied on the other party’s conduct. Lehman, 154 F.3d at 1016 (citing United States v. Hemmen, 1 51 F.3d 883, 892 (9th Cir. 1995)). In cases against the government, a heightened standard is 2 applied. In addition to the four factors above, a party seeking to rely on estoppel must show the 3 agency engaged in “affirmative conduct going beyond mere negligence” and the application of 4 equitable estoppel will not cause “the public’s interest . . . [to] suffer undue damage.” Id. 5 The court finds plaintiffs are unable to meet the heightened standard here. To show the 6 government engaged in “affirmative conduct beyond mere negligence,” plaintiffs must 7 demonstrate the government deliberately lied or engaged in a pattern of false promises. See 8 Mukherjee v. I.N.S., 793 F.2d 1006, 1009 (9th Cir. 1986) (finding no affirmative misconduct on 9 government’s behalf despite vice consul’s incorrect advice to petitioner). The government did 10 not. 11 First, to the extent plaintiffs argue the email communications from the USDA claims 12 processor amounts to misleading conduct, the court remains unconvinced. In an email exchange 13 with a USDA claims processor, plaintiffs’ counsel wrote, “[it] is our intention to file a complaint 14 in this case.” Claims Processor Emails Cont. at 2. Plaintiffs’ counsel goes on to ask the USDA 15 claims processor to “confirm” whether their “claim ha[d] been submitted and deemed rejected.” 16 Id. The claims processor responds stating, “[w]e cannot make a determination locally on claims, 17 they must be submitted to OGC for approval or denial.” Id. Plaintiffs’ counsel replied, stating 18 they “[a]ppreciate[d] the confirmation” and that “[they] will act in accordance with the statute and 19 wait to hear from your office.” Id. The claims processor responded saying “[t]hank you very 20 much. Your patience and understanding is appreciated in this matter.” Id. 21 At most, this email thread reflects a misunderstanding, or something akin to ships passing 22 in the night. Plaintiffs’ counsel attempted to confirm the amended claim had been denied from 23 someone who indicated he or she did not have the authority to make this determination. The 24 communication does not rise to the level of affirmative conduct by the government going beyond 25 mere negligence. The Ninth Circuit has held “[p]ersons dealing with the government are charged 26 with knowing government statutes and regulations, and they assume the risk that government 27 agents may exceed their authority and provide misinformation.” Mukherjee, 793 F.2d at 1009 28 (internal citations and quotations omitted); see also McNeil v. United States, 508 U.S. 106, 113 1 (1993) (observing “risk that a lawyer will be unable to understand the [FTCA’s] exhaustion 2 requirement is virtually nonexistent”). Here, the claims processor did not provide any 3 misinformation. Rather, the claims processor informed plaintiffs’ counsel that a determination 4 could not be made at that point, because the claim had to “be submitted to OGC for approval or 5 denial.” Claims Processor Emails Cont. at 2. 6 Second, plaintiffs’ argument that the government’s “utter silence for almost a year about 7 the supposed technical defect of an early filing[]” means equitable estoppel is warranted here, the 8 court is not persuaded. The Ninth Circuit has specifically held “an omission to give advice is 9 insufficient conduct to support equitable estoppel against the government.” Lehman, 154 F.3d at 10 1017 (citation omitted) (finding plaintiffs could not successfully invoke equitable estoppel and 11 their FTCA claim time barred). Even if plaintiffs accurately characterize the government’s “utter 12 silence,” this does not mean the government engaged in “affirmative conduct going beyond mere 13 negligence.” See, e.g., Cadwalder v. United States, 45 F.3d 297, 299–300 (9th Cir. 1995) 14 (holding government’s failure to inform plaintiffs their claim was legally insufficient did not 15 support equitable estoppel). In any event, as discussed below, the government did reach out to 16 plaintiffs’ counsel to inform them of the technical defect. See Government Email. 17 Plaintiffs cannot successfully invoke equitable estoppel here. 18 C. Equitable Tolling 19 Plaintiffs also assert equitable tolling applies in this case. See Opp’n at 17. Equitable 20 tolling can apply to the time limitations in the FTCA. See United States v. Kwai Fun Wong, 21 575 U.S. 402, 420 (2015). According to the Ninth Circuit, equitable tolling allows “courts to 22 meet new situations [that] demand equitable intervention, and to accord all the relief necessary 23 to correct . . . particular injustices.” Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 24 2013) (citation omitted) (discussing equitable tolling in FTCA action). For equitable tolling to 25 apply, plaintiffs bear the burden of establishing two elements: (1) they have pursued their rights 26 diligently, and (2) some extraordinary circumstances stood in their way. Redlin v. United States, 27 921 F.3d 1133, 1140 (9th Cir. 2019) (citation omitted). The diligence prong focuses on “affairs 28 within the litigant’s control” while the extraordinary-circumstances prong examines “matters 1 outside [the litigant’s]. . . control.” Menominee Indian Tribe of Wisconsin v. United States, 2 577 U.S. 17 250, 257 (2016). 3 Here, even assuming plaintiffs pursued their rights diligently, the court finds there was no 4 extraordinary circumstance outside their control justifying equitable tolling. In Menominee 5 Indian Tribe of Wisconsin, the Supreme Court held a party’s mistaken belief was not outside its 6 control and thus did not constitute an extraordinary circumstance justifying equitable tolling. 7 577 U.S. at 257; see also Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (internal citation omitted) 8 (“a garden variety claim of excusable neglect, such as miscalculation that leads a lawyer to miss a 9 filing deadline, does not warrant equitable tolling”). The Court did, however, leave open the 10 question of whether a reasonable mistake of law can ever be found extraordinary. Id. at n.3. 11 Here, the mistake of law––plaintiffs’ counsel’s untimely filing of this action––was not 12 reasonable and does not constitute an extraordinary circumstance. See, e.g., Redlin, 921 F.3d at 13 1141 (finding equitable tolling did not apply to excuse late filing in FTCA action). Plaintiffs 14 argue the denial letters they received were confusing and “appeared” to say “no further steps 15 needed to be taken” because “the lawsuit [in Perez I] was accepted as timely.” Opp’n at 11. 16 Plaintiffs further argue the government never advised them in 2022, when Perez I was filed “that 17 the lawsuit that had been filed was ‘premature’ or that another lawsuit needed to be filed to 18 satisfy any timing or exhaustion requirements.” Opp’n at 11-12. 19 First, even if the court agreed some of the government’s communications were confusing 20 —e.g., if the court decided it was reasonable for plaintiffs’ counsel to mistake the August letter 21 from 2022 as conceding the Perez I complaint was timely—the government’s subsequent 22 communications put plaintiffs on notice there was an issue with their filing they needed to 23 remedy, in time for them to remedy. Significantly, prior to the February 25, 2023––plaintiffs’ 24 deadline to file their FTCA complaint––the government sent plaintiffs’ counsel an email on 25 February 9, 2023, stating “in reviewing the complaint [in Perez I], it appears it was filed before 26 six months had passed after your clients submitted their [administrative claim] to USDA.” 27 Government Email; see also Reply at 7. Plaintiffs admit they received this email, but argue the 28 government never advised them “another lawsuit needed to be filed to satisfy any timing or 1 exhaustion requirements.” Opp’n at 7 n.4. But again, “the absence of legal advice from the 2 government’s counsel does not make plaintiffs’ ignorance of the limitations period excusable.” 3 Lehman, 154 F.3d at 1016. 4 While it takes no pleasure in doing so, the court finds plaintiffs’ counsel’s filing the 5 second complaint after the February 25, 2023 statutory deadline, was not a reasonable mistake of 6 law outside their control. In this case, even if the government’s letters may have caused some 7 confusion, it was for plaintiffs’ lawyers to sort through the confusion and the government 8 counsel’s subsequent communications should have cured any confusion. 9 Plaintiffs cannot rescue their case through reliance on equitable tolling in this case. 10 IV. CONCLUSION 11 For the reasons stated above, the court finds the instant suit time-barred and not subject to 12 equitable tolling. Further, plaintiffs may not rely on equitable estoppel. The government’s 13 motion for summary judgment is GRANTED. The Clerk of Court is directed to close this case. 14 This order resolves ECF No. 13. 15 IT IS SO ORDERED. 16 DATED: October 16, 2024.